United States of America v. Joel Gonzalez-Gomez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4025
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOEL GONZALEZ-GOMEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at
Charleston. Joseph R. Goodwin, District Judge. (2:20-cr-00157-1)
Submitted: August 24, 2021 Decided: August 26, 2021
Before NIEMEYER and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West Virginia, for
Appellant. Lisa G. Johnston, Acting United States Attorney, Joshua Clarke Hanks,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Joel Gonzalez-Gomez pled guilty, pursuant to a written plea agreement, to
conspiracy to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C.
§ 846, and reentry of a removed alien, in violation of 8 U.S.C. § 1326(a). He received a
135-month sentence on the conspiracy charge and a 120-month sentence on the reentry
charge, to run concurrently. On appeal, Gonzalez-Gomez argues that the district court
erred in calculating the drug weight attributable to him, in applying a two-level
enhancement for possession of a dangerous weapon, and in sentencing him to the statutory
maximum on the reentry charge. In addition, Gonzalez-Gomez contends that trial counsel
was ineffective for failing to properly advise Gonzalez-Gomez regarding the use of
relevant conduct not included in the stipulated statement of facts at sentencing. The
Government has moved to dismiss Gonzalez-Gomez’s sentencing claims as barred by the
appellate waiver in his plea agreement and asserts that his ineffective assistance of counsel
claim is without merit. For the reasons that follow, we dismiss in part and affirm in part.
It is well established that a defendant may waive the right to appeal if that waiver is
knowing and intelligent. See United States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005).
When the Government seeks to enforce an appeal waiver and did not breach its obligations
under the plea agreement, we will enforce the waiver if the record establishes that: (1) the
defendant knowingly and intelligently waived his right to appeal; and (2) the issues raised
on appeal fall within the waiver’s scope. Id. at 168-69. Generally, if the district court fully
questions a defendant regarding the waiver of his right to appeal during the Fed. R. Crim.

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P. 11 colloquy, the waiver is both valid and enforceable. See United States v. Johnson, 410
F.3d 137, 151 (4th Cir. 2005).
Even a valid waiver does not waive all appellate claims, however. Specifically, a
valid appeal waiver does not preclude a challenge to a sentence on the ground that it
exceeds the statutory maximum or is based on a constitutionally impermissible factor such
as race, arises from the denial of a motion to withdraw a guilty plea based on ineffective
assistance of counsel, or relates to claims concerning a violation of the Sixth Amendment
right to counsel in proceedings following the guilty plea. See id.
In his plea agreement, Gonzalez-Gomez waived his right to appeal his conviction
and any sentence imposed below or within a Sentencing Guidelines range based on an
offense level of 32. Gonzalez-Gomez does not assert that his appellate waiver was
unknowing or involuntary, and, because Gonzalez-Gomez’s Guidelines range—within
which the district court sentenced him—was based on a total offense level of 31, we
conclude that his sentencing claims are barred by the appellate waiver.
Notably, Gonzalez-Gomez’s ineffective assistance claim is not foreclosed by the
appellate waiver. However, we do not consider ineffective assistance claims on direct
appeal “[u]nless an attorney’s ineffectiveness conclusively appears on the face of the
record.” United States v. Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016). Instead, such
claims “should be raised, if at all, in a 28 U.S.C. § 2255 motion.” Id. at 508. Because
ineffectiveness of counsel does not conclusively appear on the face of the record, we
conclude that Gonzalez-Gomez’s ineffective assistance of counsel claim is not cognizable
on direct appeal.

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Accordingly, we dismiss Gonzalez-Gomez’s appeal as to his sentencing claims and
affirm the judgment of the district court as to the claim of ineffective assistance of counsel.
We dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid the decisional
process.
AFFIRMED IN PART,
DISMISSED IN PART

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